The Contingent Workforce: Employer Expectations and Legal Realities

When individuals are not considered to be employees, employers are often insulated from various discrimination suits. While this is not the main reason an employer hires contingent workers, it can be an added benefit. However, just as it is important to classify individuals properly for benefit and tax purposes, law firms also need to classify individuals properly to ensure they understand the possible discrimination issues up front and will not be unwittingly blind-sided by someone whom they thought was a contingent worker, but who is subsequently determined to be an employee. The U.S. Court of Appeals for the Second Circuit held in Eisenberg v. Advance Relocation & Storage, Inc. that when determining whether a worker is an employee for Title VII purposes, the analysis needs to focus on the "extent to which the hiring party controls the manner and means by which the worker completes [his or] her assigned tasks, and not on how [he or] she is treated for tax purposes or whether [he or] she receives benefits." The factors used by the court were derived from the 13 factors set forth in the U.S. Supreme Court case, Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The court in Eisenberg focused on how the "anti-discrimination laws were not intended to be skirted by the terms of individual employment contracts."

19 minute readApril 01, 2003 at 10:37 AM
By
Christopher Perry
The Contingent Workforce: Employer Expectations and Legal Realities

Part 2 of 2

Part 1 of this article outlined the different categories of contingent workers. In Part 2, the author outlines the ramifications of misclassifying contingent workers, both in case law and for the IRS.

This premium content is locked for LawJournalNewsletters subscribers only

ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN LawJournalNewsletters

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts
Subscribe Now

Already have an account? Sign In Now

For enterprise-wide or corporate access, please contact Customer Service at [email protected] or call 1-877-256-2473.

NOT FOR REPRINT

© 2026 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.

Continue Reading

Landlord & Tenant Law

Letter Agreement Between Landlord and Tenant Did Not Extinguish GuarantyTreble Damage Award Upheld; Landlord Failed to Establish Overcharge Was Not WillfulDenying Access to Landlord Constituted Breach Entitling Landlord to PossessionTenant Entitled to Yellowstone Injunction With Respect to Taxes and Sewer Charges

March 01, 2026

New York’s New AI Laws for Posthumous Right of Publicity and for Advertising Transparency

New York is one of the first states to adopt laws to regulate artificial intelligence use in advertising and to strengthen post-mortem publicity rights regarding AI-generated replicas and “synthetic performers.” Given the state’s role as a bellwether for consumer-protection and advertising regulation, these new laws, combined with the state’s broader AI legislative framework, represent a shift toward transparency, consent and accountability.

March 01, 2026

State Age Verification Mandates Could Redefine COPPA Risk for General Audience Apps

State app store age verification regimes do more than reallocate responsibility between platforms and developers. They create a new data supply chain for age knowledge, one that can move COPPA questions from “do we ask age?” to “what do we do when the platform tells us?” The teams that handle this best will treat platform age signals as sensitive compliance inputs: minimize them, tightly control where they flow, and design product behavior so that minors do not trigger unnecessary collection or disclosure.

March 01, 2026

The Power of One: How Leading Firms Are Rethinking Revenue Operations

The firms leading right now chose to ask what would become possible if they managed the entire revenue lifecycle — from invoice generation to cash receipt — in one place, and what AI could actually accomplish with complete data instead of partial feeds. That is the Power of One.

March 01, 2026

Using AI Without Waiving Privilege: Lessons from United States v. Heppner

A recent decision from the U.S. District Court for the Southern District of New York (SDNY), United States v. Heppner, has generated outsized commentary suggesting that the use of generative AI tools may jeopardize attorney-client privilege. A closer reading shows something far less dramatic.

March 01, 2026